Three conditions, according to this Amendment, are necessary. First, there must be “a suit.” But the Supreme Court, in the case of Cohens v. Virginia, have defined a suit to be “the prosecution, or pursuit, of some claim, demand, or request,”[361]—thus affirming that the “claim” for a fugitive is “a suit.” Secondly, there must be a suit “at Common Law.” But here again the Supreme Court, in the case of Parsons v. Bedford, while considering this very clause, has declared that “in a just sense the Amendment may well be construed to embrace all suits which are not of Equity and Admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights”;[362] and clearly, since the claim for a fugitive is not a suit in Equity or Admiralty, but a suit to settle what are culled “legal rights,” it must, of course, be “a suit at Common Law.” Thirdly, the value in controversy must “exceed twenty dollars.” But here again the Supreme Court, in the case of Lee v. Lee, on a question as to jurisdiction, founded on “the value in controversy,” has declared that the freedom of the petitioners, which was the matter in dispute, was “not susceptible of a pecuniary valuation,”[363]—showing, that, since Liberty is above price, the claim to a fugitive always necessarily presumes that “the value in controversy exceeds twenty dollars.”
Thus, by a series of separate decisions of the Supreme Court on the three points involved in the interpretation of this clause, it is clear beyond question that the claim to a fugitive is, first, “a suit,”—secondly, “at Common Law,”—thirdly, “where the value in controversy exceeds twenty dollars”: so that trial by jury is expressly secured.
Even if the Supreme Court had been silent on this question, the argument from the old books of the Common Law would be unanswerable. We are told that there is nothing new under the sun. Certainly, long before our Constitution, the claim for a fugitive slave was known to the Common Law. In early history, and down even to a late period, the slave in England was generally called villein, though in the original Latin judicial forms nativus, implying slavery by birth. Of course, then as now, he sometimes ventured to escape from his master; but the Common Law supplied the appropriate remedy. The claim was prosecuted by “a suit at Common Law,” to which, as to every suit at Common Law, the trial by jury was necessarily attached. Blackstone, in his Commentaries, in words which must have been known to all the lawyers of the Convention, said of villeins: “They could not leave their lord without his permission, but, if they ran away, or were purloined from him, might be claimed and recovered by action, like beasts or other chattels.”[364] But this word “action” of itself implies “a suit at Common Law,” with trial by jury.
The forms of proceeding in such cases are carefully preserved in those books which constitute the authoritative precedents of the Common Law. There are writs, counts, pleadings, and judgments, all ending in trial by jury. They will be found in Fitzherbert’s “Natura Brevium.”[365] The Year Books and Books of Entries are full of them. Clearly and indisputably, in England, where the Common Law has its origin, a claim for a fugitive slave was “a suit at Common Law,” recognized as such among its old and settled proceedings, as much as a writ of replevin for a horse or a writ of right for land. It follows, then, that the requirement of the Constitution, read in the illumination of the Common Law, naturally and necessarily embraces proceedings for the recovery of fugitive slaves, so far as any such are instituted or allowed under the Constitution.
And this irresistible conclusion had the support of a Senator from South Carolina in an earlier period of our history, before passion had obscured reason and conspiracy against the Union had blotted out all loyalty to truth. In reply to a proposition, in 1818, to refer the claim of the master to a judge without a jury, Mr. Smith, speaking solely in the interests of property, thus expressed himself:—
“This would give a judge the sole power of deciding the right of property the master claims in his slave, instead of trying that right by a jury, as prescribed by the Constitution. He would be judge of matters of law and matters of fact,—clothed with all the powers of a jury, as well as the powers of a court. Such a principle is unknown in your system of jurisprudence. Your Constitution has forbid it. It preserves the right of trial by jury in all cases where the value in controversy exceeds twenty dollars.”[366]
Thus, in those days, a partisan of Slavery, while asserting its divine origin, and vindicating the rendition of fugitive slaves, recognized the claim of the master as “a suit at Common Law,” to be tried by a jury; and this he insisted was prescribed by the Constitution. But if this Senator could claim trial by jury for the protection of his pretended property, with much greater reason might the fugitive claim trial by jury for the protection of his liberty. Surely, now, when Liberty is regaining her lost foothold, this protection will not be denied.
OBJECTIONS TO TRIAL BY JURY.
To this array of reason and authority there are but two attempts at reply, so far as the Committee is informed.
(1.) The first asserts that the rendition of the slave under the Act of Congress is a “preliminary” proceeding, in the nature of extradition, which does not establish any right between the parties, but simply hands the slave over to the local jurisdiction from which he escaped, and therefore trial by jury is unnecessary. But this pretension is founded on a plain misapprehension. It forgets, in the first place, that by ancient authority a “claim” for a fugitive slave is unquestionably a “suit at Common Law,” to be determined by a jury before the judgment of rendition. And it forgets, in the second place, that the proceedings are in no respect “preliminary”; that they do not contemplate any other trial between the parties, but that they fix absolutely the relations of the parties, making one of them master and the other slave; that the certificate of rendition is absolute and unimpeachable by any human tribunal, so that the claimant, from the moment of its issue, may assert unqualified ownership over the fugitive; that, under this certificate, he may proceed at once to demand service and labor, and enforce his demand by the lash; and that, instead of returning the victim to that local jurisdiction from which he is alleged to have escaped, the claimant may hurry him, chained and manacled, to some distant plantation, where the only judge will be an overseer, and the only jury the creatures who aid in enforcing a terrible power. And the argument forgets, also, that this cruel judgment may be inflicted upon a freeman, who, perhaps, has never left his Northern home, but whose fate will be fixed beyond appeal by the mere certificate of a commissioner. Surely this simple statement is enough.